Government by seven High Court judges and the black letter of the Constitution

The enormous confidence that the Turnbull Government is placing in the capacity of the High Court to decide whether MPs have violated Section 44 is questionable.

The "black letter" approach that the conservative Court has adopted looks like a most unwise decision. Several of the MPs now removed could hardly be seen as in any way active citizens of another country. While they may not have checked this situation properly, any danger to Australia of having this dual nationality is completely fanciful. It may have been more sensible and fruitful to insist on having the second nationality cancelled forthwith.

Section 44 of the Australia Constitution Act has taken on a very different meaning than was intended in 1901. At the time, all citizens of the British Empire living in Australia were formal citizens of the new colonial Federation and all other residents were foreigners.

That the Australian Constitution has been in the news recently over the dual citizenship of a number of politicians, is in itself a very good thing. One major question that this raises is: Does the effective power on critical issues such as this rest with the High Court or the Parliament? Interpreting a Constitution that is clearly an archaic document has its severe limits for proper governance. It is high time that Australians begin to understand this and question why this is so — and then to realise that remedies need to be generated urgently.

The Constitution is in need of a complete overhaul rather than any further piecemeal tinkering with occasional amendments. Section 128 of the Constitution has turned out to be a very restrictive amendment procedure — even quite contrary to the intentions of the founding fathers in the 1890s. In addition, the adversarial two-party system produced by the single-member-district election system meant that referendum proposals need to be supported by both major parties to be accepted. This is frequently impossible.

The four referendums that failed in 1988 made it perfectly clear how difficult that is and has been on many occasions. Governments shy away from Constitutional referendums constantly. The recent Indigenous conferences and proposed resolutions knocked back by the hapless Turnbull Government, are the most recent example.

The Constitution needs to be rewritten entirely — and not by the self-interested parties. The list of shortcomings is very long. The special situation here that the Constitutional court is required to also keep the Federation in place – a feature of any federation – adds to its power to just about govern the nation. However, maintaining the Federal system is in itself of very questionable benefit, as it has proved to be costly and productive of serious delays in infrastructure development. Contrary to what defenders claim, it has not resulted in effective decentralisation either. Many unitary states in the world are more effectively decentralised.